Singh (Migration)

[2019] AATA 2655

Singh (Migration) [2019] AATA 2655 (7 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Satinder Pal Singh
Ms Amandeep Kaur

CASE NUMBER:  1602187

DIBP REFERENCE(S):  BCC2015/2935164

MEMBER:Alison Mercer

DATE:7 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 07 January 2019 at 12:09pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – occupation of Restaurant or Café Manager – approved nomination by an approved standard business sponsor – employer ceased operations – repeal of the subclass 457 visa program – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018
Migration Regulations 1994, Schedule 2, cl 457.223; rr 2.72, 2.73

CASES

Chen v Minister for Immigration and Border Protection [2016] FCCA 2351
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 8 October 2015.

3. At the time the visa application was lodged, Class UC contained subclass 457. The criteria for a subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.

4. The delegate refused to grant the visas on 15 February 2016 on the basis that cl.457.223(4)(a) was not met because the first named applicant (‘the applicant’) was not the subject of an approved nomination made by an approved standard business sponsor. The delegate found that the applicant’s proposed employer, RA Star Enterprises Pty Ltd, had its nomination refused on 10 December 2015.

5. The Tribunal received a review application from the applicants on 23 February 2016, which was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Dildeep Singh, as their representative and authorised recipient for correspondence.

6. On 21 September 2018, the Tribunal wrote to the applicants via their agent to advise them that on 18 March 2018, the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 were introduced, and that amongst other things, r.2.72 of the Migration Regulations 1994 (‘the Regulations’) had been repealed and replaced, as had the subclass 457 visa program. The letter noted that it was a requirement for the applicants’ subclass 457 visas that the applicant was the subject of an approved nomination by a standard business sponsor as per cl.457.223(4)(a) of the Regulations, and that a review of the applicants’ file indicated that the applicant was not, and that a new application for approval of a nomination in support of his subclass 457 visa could no longer be made. The Tribunal noted that, without an approved nomination, the applicant would not meet an essential criterion for the grant of a subclass 457 visa, and it asked him to provide evidence that he was the subject of an approved nomination, or alternatively, to advise whether the applicants wished to withdraw their review application.

7. On 15 October 2018, the applicants’ agent advised the Tribunal that the applicant was in the process of seeking a new employer to lodge a new nomination of him and expected to be able to provide a new nomination in 6 weeks or so.

8. The matter was constituted to a Tribunal Member on 1 November 2018. On 23 November 2018, the Tribunal wrote to the applicants via their agent to invite them to a hearing on 19 December 2018.

9. The applicant appeared before the Tribunal on 19 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

10. The applicant told the Tribunal that he was trying to find a new employer and secure a new nomination as a Restaurant or Café Manager (the occupation he undertook for RA Enterprises Pty Ltd). The Tribunal discussed with the applicant its earlier written advice that a new nomination now could not satisfy cl.457.223(4)(a) as a post-18 March 2018 nomination could only be used for a post-18 March 2018 subclass 482 visa, and not the (now closed) subclass 457 visa.

11. The Tribunal put information to the applicant pursuant to s.359AA; namely, that RA Enterprises Pty Ltd lodged an application for review of the nomination refusal but that the Tribunal dismissed its application for review on 8 August 2017, as the employer did not attend a Tribunal hearing when invited to do so. The Tribunal further advised that the review application about the nomination refusal was dismissed finally (and therefore affirmed) on 24 August 2017 and therefore the nomination decision remained refused. The Tribunal advised that this indicated that the applicant could not satisfy cl.457.223(4)(a) and that if it found this, this would be the reason to affirm the decision under review. The Tribunal clarified with the applicant that he understood the information and its relevance to his review application. It asked him whether he wished to respond or comment immediately or ask for additional time to do so. The applicant elected to respond immediately and he told the Tribunal that his previous employer closed down, which is why it did not attend the hearing and its review application was dismissed. He said that since that time, he had been looking for a new employer in the same field but it was difficult to find someone to take him on due to his unresolved visa status.

12. The Tribunal reiterated its view that even if the applicant were to do so, this would not meet cl.457.223(4)(a) due to the repeal of the subclass 457 visa program, and associated nomination program, on 18 March 2018. The Tribunal noted that this was the case even though it accepted that the withdrawal of his original nomination was not within his control. The Tribunal also observed that it was not required to defer making its decision to enable the applicant to explore other visa options, particularly where (as in this case) the criterion in dispute was legally simple. The Tribunal recommended that the applicant spoke with his migration agent about his other possible options as soon as possible as it anticipated making its decision shortly after the hearing.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Requirement for an approved nomination

14. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

15. It was not disputed by the applicant that the original nomination of him for a subclass 457 visa by RA Star Enterprises Pty Ltd was not approved by the Department, and that that employer’s review application for the refusal decision was dismissed by the Tribunal on 24 August 2017. As discussed, this dismissal is taken to be an affirmation of the Department’s decision to refuse to approve the nomination.

16. The Tribunal notes the applicant’s advice that he has been seeking a new employer who is willing to apply to be an approved standard business sponsor and to nominate him for a visa. However, as at the date of the Tribunal’s decision, there is no evidence that the applicant has been able to do so. Moreover, and more significantly, even if the applicant were able to do so, the Tribunal is of the view that this would not satisfy cl.457.223(4)(a).

17. This is because of legislative amendments introduced on 18 March 2018 by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018, which repealed the Class UC subclass 457 (Temporary Work (Skilled)) visa and replaced it with the new Class GK (Temporary Skill Shortage) visa. The amending Regulations also introduced a new set of substantive criteria and procedural requirements for the nomination of occupations in relation to applicants of subclass 482 visas. The effect of these amendments is that any future new sponsorship and nomination from another employer, even if approved, would not meet the requirements in cl.457.223(4)(a) because a nomination under r.2.72 made after 18 March 2018 can only support an application in respect of an applicant for the temporary short stay (subclass 482) visa or existing subclass 482 or 457 visa holders: r.2.72(1)(b). As these circumstances do not apply to the applicant, the Tribunal considers that a nomination lodged after 18 March 2018 cannot support an application for a subclass 457 visa that has not been finally determined. In the circumstances, it would be futile for the Tribunal to further delay the making of the decision on this application for review.

18. In deciding not to defer making its decision, the Tribunal has had regard to the Court's considerations in Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013) regarding the reasonableness of any request for an adjournment. The Tribunal has also had regard to the judgements in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision making processes. Similarly, in the decision in Chen v Minister for Immigration and Border Protection [2016] FCCA 2351, the Court upheld a decision by the Tribunal not to defer a review application regarding whether the applicant met the criteria in cl.457.223(4)(a) until the outcome of a pending nomination application.

19. While the Tribunal has some sympathy for the applicant’s circumstances, which are not of his own making, it must nevertheless make its decision on the matter under review.

20. The Tribunal finds that the requirements of cl.457.223(4)(a) are not met by the applicant and it must affirm the decision not to grant him a subclass 457 visa.

21. The Tribunal must also affirm the decision not to grant the second named applicant a subclass 457 visa as she does not meet the secondary visa criteria to be a member of the family unit of a person who holds a subclass 457 visa, and there is no evidence to indicate that she meets the primary visa criteria in her own right.

22. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicants would be able to satisfy the specific criteria for those streams.

    DECISION

23. The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    Alison Mercer
    Member

    
    

    ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

    457.223

    …

    Standard business sponsorship

    …

    (4)The applicant meets the requirements of this subclause if:

    (a)each of the following applies:

    (i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

    (ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

    (iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and

    (aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and

    (ba)either:

    (i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

    (ii)     each of the following applies:

    (A)the applicant is employed to work in the nominated occupation;

    (B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

    (C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

    (d)the Minister is satisfied that:

    (i)    the applicant’s intention to perform the occupation is genuine; and

    (ii)     the position associated with the nominated occupation is genuine; and

    (da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

    (e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

    (eb)if:

    (i)    the applicant is not an exempt applicant; and

    (ii)     subclause (6) does not apply to the applicant;

    the applicant:

    (iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

    (v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

    (ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

    (f)either:

    (i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

    (ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

    …

    (6)This subclause applies to an applicant if:

    (a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and

    (b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

    …

    (11)In subclause (4):

    exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.